VETHESTA CONSTRUCTION Vs. STATE

JUDGEMENT

(1.) The appellant filed an application for grant of interim relief under Section 9 of Arbitration and Conciliation Act of 1997 (for short Act of 1997). This application was dismissed by the learned Principal District Judge, Anantnag, vide order dated 28-06-2011. The appellant feeling aggrieved of the said order, challenged the same in Statutory Appeal No. 02/11, which appeal was dismissed by the Ld. single Judge on 11th July 2011. The appellant in order to vindicate his legal rights has filed this LPA praying therein that the impugned judgment/orders be set aside and his application filed u/S. 9 of the Act of 1997 be allowed.

(2.) The Court on 12th Sept. 2011 while modifying the earlier interim order, provided that question about the maintainability of Letters Patent Appeal would be considered at the time of hearing of the appeal. Mr. Allau din Ganaie, Ld. Dy.AG, raised preliminary objection about the maintainability of this LPA on the ground that after dismissal of statutory appeal filed by the appellants u/S. 37 of the Act of 1997, in view of the language of the said Section, no further appeal can be filed in this Court. Ld. counsel in this behalf referred to Section 37(3) of the Act of 1997. Ld. counsel in support of his contention referred to and relied upon the judgment of the Hon'ble Supreme Court in case titled PS. Sathappen v. Andhra Bank Ltd., 2004 AIR(SC) 5152 and the judgment of the Hon'ble Supreme Court reported in case titled Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., 2011 AIR(SC) 2649 and other connected cases. Ld. counsel also referred to the Division Bench judgment of diis Court in case titled Gh. Rasool Chaku & Ors. v. Gh. Ahmad Chaku and others LPA No. 273/09 dated on 7th July 2011. Ld. counsel also referred to, the case title G.M. Pampori v. State of J & K and Ors., 2001 AIR(J&K) 18 and submitted that LPA being not maintainable merits dismissal.

(3.) Mr. R. A. Jan, Ld. Sr. counsel appearing on behalf of the appellants with all his eloquence and vehemence submitted that LPA is maintainable. Ld. counsel refered to Section 37 (1 & 3) of the Act of 1997 and submitted that on the plain language of the Section 37 (1 & 3) the right to file LPA, which has been given under the charter of me High Court, has not been taken away. Ld. counsel submitted had it been intention of the legislatures to take away the right to file LPA they would have specifically mentioned the same in the Section 37 of the Act of 1997. Ld. counsel was at pains to explain that the expression used in Section 37(1) of the Act of 1997 that appeal shall lie from the orders mentioned therein "and from no others" would mean that appeal under the said provision could be filed only in respect of the orders mention whereof is made at (a), (b) of (1)(2) of Section 37 of the Act of 1997, and in view of the language used in the said provision of law-appeal against the other orders would not be competent. Ld. counsel submitted that sub-section (3) of Section 37 of the Act of 1997, bars filing of a second appeal from the order passed on appeal under the said section, but it does not take away the right to file an LPA. Ld counsel also referred to Section 50 of the Arbitration and Conciliation Act of 1996 (for short Act of 1996), a Central Act, and submitted that the law laid down in Fuerst Day case was passed oh consideration of Section 50 of the Act of 1996. Ld. counsel submitted that the provisions of Section 37 of the Act of 1997 and Section 50 of the Act of 1996, operate in different circumstances and are not similar. Ld. counsel submitted that the judgment(s) are of no help to the respondents for seeking declaration that this appeal is incompetent. Ld. counsel further submitted that power of the High Court in hearing an LPA is akin to constitutional power. Ld. counsel submitted that the jurisdiction and power to hear an LPA cannot be taken away impliedly but can be taken away if there is express bar in the statute. Ld. counsel submitted that there being no express bar in the statute viz. Section 37 of the Act of 1997 in respect of filing of an LPA, this appeal is competent and maintainable. Ld. counsel in support of his contention referred to and relied upon decision of the Hon'ble Supreme Court reported in VANITA M KHANOLKAR v. PRAGNA M PAI, 1998 AIR(SC) 424, V H PATEL & COMPANY V. HIRUBHAI HIMABHAI PATEL, 2000 4 SCC 368, VANITA M KHANOLKAR V. PRAGNA M PAI, 1998 1 SCC 500, ORMA IMPEX PRIVATE LIMITED V. NISSAI ASB PRIVATE LIMITED, 1999 2 SCC 541; UNION OF INDIA V. ARADHANA TRADING CO, 2002 AIR(SC) 1626 and UMAJI KESHAO MESHRAM V. RADHIKABAI,WIDOW OF ANANDRAO BANAPRKAR, 1986 AIR(SC) 1272 and submitted that this LPA is maintainable. Ld. counsel argued on the merits of the case also to show that the order passed by the Ld. single Judge as also by the Court of first instance is illegal.